ejusdem gradus personis adcrescit: vel si nemo ex eo sit, deinceps ceteris proinde bonorum possessionem ex successorio edicto pollicetur, ac si is, qui præcedebat, ex eo numero non esset. Sed si quis ita delatam sibi bonorum possessionem repudiaverit, non quousque tempus bonorum possessioni præfinitum excesserit, expectatur, sed statim ceteri ex eodem edicto admittuntur. In petenda autem bonorum possessione dies utiles singuli considerantur. possession accrues to those in the same D. xxxvii. 1. 3. 9; D. xxxvii. 1. 4, 5; D. xxxviii. 9. 1. 6. 8. 10; 10. Sed bene anteriores principes et huic causæ providerunt, ne quis pro petendo bonorum possessiones curet, sed, quocumque modo si admittentis eam indicium, intra statuta tamen tempora, ostenderit, plenum habeat earum beneficium. 10. Former emperors have wisely provided that no person need trouble himself as to the possession of goods in the way of making an express demand; for if he has in any manner signified within the appointed time his wish to accept the possession he shall enjoy the full benefit of the possession he can claim. C. vi. 9. 8, 9. Only those dies were considered utiles which were subsequent to the person entitled to the possession being aware of his right, and which were not days on which magistrates did not transact business (dies nefasti). Demand of possession was to be made before a magistrate, that is, before the prætor in the city, and the præses in the province; for the possession did not devolve, like the hereditas, by course of law, but had to be expressly asked for within a prescribed time. A particular formality in the terms of the demand was held necessary, the applicant having to say, 'da mihi hanc bonorum possessionem' (THEOPH. Paraphr.), until a constitution of the Emperor Constantius (C. vi. 9. 9) permitted the application to be made in any terms, and before any magistrate, and another constitution excused those whom ignorance of what was the proper course, or whom absence prevented from making an application. (Cod. vi. 9. 8.) In the time of Justinian there was no application before a magistrate; any act that manifested the wish to have the possession was enough. Sometimes the possession of goods was said to be given sine re, as opposed to cum re. (GAI. iii. 35; ULP. Reg. 28. 13.) The possession might be claimed, in many cases, by persons who were entitled to enter on the inheritance as heirs under the civil law. If these persons entered on the inheritance without demanding possession of the goods, the right to this possession devolved, at the expiration of the time in which they might have claimed it, to the next class entitled to it. But if the person standing next in the order of prætorian succession demanded the possession in such a case, he received it, but only sine re, i.e. he was placed in the legal position of possessor of the goods, but did not really have any share in those goods which formed the inheritance of the heir under the civil law. As we have now finished the subject of successions ab intestato, as treated of in the Institutes, and seen the system prevailing when the Institutes were published, this is the most natural place to notice briefly the complete change introduced by the 118th and 127th Novels, which were issued respectively in the years 543 and 547. By this sweeping change, the difference between the possessio bonorum and the hereditas, and that between agnati and cognati, were entirely suppressed, and three orders of succession were created: the first, that of descendants; the second, that of ascendants; the third, that of collaterals. (1.) The descendants succeeded, whether emancipated or not, and whether adoptive or natural, to the exclusion of all other relations, and without distinction of sex or degree. When they were in the first degree, they shared the inheritance per capita; when in the second, they shared it per stirpes. (2.) If there were no descendants, the succession belonged to the ascendants, except that, when there were brothers or sisters of the whole blood, the ascendants shared the inheritance with them, each person who had a claim to succeed taking an equal share. When there were no such brothers or sisters, the nearest ascendant took, excluding the more remote; if two or more ascendants of the same degree were not in the same line, that is, were partly in the paternal, partly in the maternal line, then the ascendants of one line took one half, and the ascendants of the other took the other half, although there might be more of the same degree in one line than in the other. (3.) If there were no ascendants, then came, first, brothers and sisters of the whole blood, then brothers and sisters of the half-blood, no distinction being made between consanguinei, -æ, and uterini, -a. The children of a deceased brother or sister were allowed to represent their deceased parent, and to receive the share that parent would have received; but the grandchildren of a brother or sister were not allowed to represent their grandfather or grandmother. If there were no brothers and sisters, or children of brothers and sisters, the nearest relation, in whatever degree, succeeded; if there were several in the same degree, they shared the inheritance per capita. TIT. X. DE ADQUISITIONE PER ADROGATIONEM. Est et alterius generis per universitatem successio, quæ neque lege duodecim tabularum neque prætoris edicto, sed eo jure, quod consensu receptum est, introducta est. There is also another kind of universal succession, introduced neither by the law of the Twelve Tables, nor by the edict of the prætor, but by the law which rests on general consent. GAI. iii. 82. We now pass to other modes of acquiring per universitatem. And the first is that of arrogation. 1. Ecce enim cum paterfamilias sese in adrogationem dat, omnes res ejus corporales et incorporales quæque ei debitae sunt, adrogatori ante quidem pleno jure adquirebantur, exceptis his, quæ per capitis deminutionem pereunt, quales sunt operarum obligationes et jus adgnationis. Usus etenim et ususfructus licet his antea connumerabantur, attamen capitis deminutione minima eos tolli, nostra prohibuit constitutio. 1. For if the father of a family gives himself in arrogation, his property corporeal and incorporeal, and the debts due to him, were formerly acquired in full ownership by the arrogator, with the exception only of those things which were extinguished by the capitis deminutio, as the obligation of services and the rights of agnation. Formerly, use and usufruct were numbered among these, but one of our constitutions prevents their extinction by the minima deminutio. GAI. iii. 82. 82; C. iii. 33. 16. pr. and 1, 2. Gaius remarks that the property of the wife who passed in manum viri was acquired by her husband exactly as fully as that of the paterfamilias was by the person who arrogated him. Everything belonging to them passed to the husband or arrogator, except only those things which were ipso facto destroyed by the change of status, as, for example, services which, as the price of his freedom, the freedman bound himself by oath to render to the patron, operarum obligationes, were due to him personally, and were no longer due if the patron passed into the power of another. The ties of agnation were also lost by the change of status, as the person arrogated passed out of his civil family. 2. Nunc autem nos eandem adquisitionem, quæ per adrogationem fiebat, coartavimus ad similitudinem naturalium parentum: nihil etenim aliud nisi tantummodo ususfructus tam naturalibus patribus quam adoptivis per filiosfamilias adquiritur in his rebus, quæ extrinsecus filiis obveniunt, dominio eis integro servato: mortuo autem filio adrogato in adoptiva familia etiam dominium ejus ad adrogatorem transit, nisi supersint aliæ personæ, quæ ex nostra constitutione patrem in his, quæ adquiri non possunt, antecedunt. 2. At the present day acquisitions by arrogation are restrained within the same limits as acquisitions by natural parents. Neither natural nor adoptive parents now acquire anything but the usufruct of those things which come to their children from any extraneous source, the children still retaining the dominium. But, if an arrogated son dies in his adoptive family, then the property also will pass to the arrogator, provided there exist none of those persons who, by our constitution, are preferred to the father in the succession of those things which cannot be acquired by him. The order of succession fixed by later emperors and Justinian to the goods of the filiusfamilias coming to him from his mother, from legacies, gifts, or sources other than the father (peculium adventitium, which could not be acquired by the father, but only the usufruct of which passed to him), was-1. His children; 2. His brothers or sisters; 3. His ancestors, the father taking before the grandfather. (C. vi. 61. 3. 4. 6; C. vi. 59. 11.) 3. Sed ex diverso pro eo, quod is 3. On the other hand, an arrogator debuit, qui se in adoptionem dedit, is not directly bound to satisfy the ipso quidem jure adrogator non tenetur, sed nomine filii convenietur et, si noluerit eum defendere, permittitur creditoribus per competentes nostros magistratus bona, quæ ejus cum usufructu futura fuissent, si se alieno juri non subjecisset, possidere et legitimo modo ea disponere. debts of his adopted son, but he may be sued in his son's name; and if he refuses to answer for his son, then the creditors may, by order of the proper magistrates, seize upon and sell in the manner prescribed by law those goods, of which the usufruct, as well as the property, would have been in the debtor, if he had not made himself subject to the power of another. GAI. iii. 84. The arrogator succeeded to all the rights of action for debt which the person arrogated had, but not to the debts. For the arrogator was in the position of a father, who was not bound by the obligations of a son. But the property of the arrogated son was held answerable for the debts, and the prætor, creating a sort of restitutio in integrum in favour of the creditor, gave an action against the arrogated as if the capitis minutio had not taken place; and then, if the arrogator did not guarantee the creditors, the prætor put the creditors in possession of the goods brought by the arrogated to the arrogator, with leave to sell them. (D. iv. 5. 2. 1; GAI. iii. 84.) TIT. XI. DE EO, CUI LIBERTATIS CAUSA BONA ADDICUNTUR. Accessit novus casus successionis ex constitutione divi Marci. Nam si hi, qui libertatem acceperunt a domino in testamento, ex quo non aditur hereditas, velint bona sibi addici libertatum conservandarum causa, audiuntur. Et ita rescripto divi Marci ad Popilium Rufum continetur. A new species of succession has been added by the constitution of the Emperor Marcus. For, if those slaves, to whom freedom has been given by the testament of their master, under which testament no one will accept the inheritance, wish that the property should be adjudged to them, in order that effect may be given to the disposition for their enfranchisement, their request is granted. Such is the effect of a rescript addressed by the Emperor Marcus to Popilius Rufus. D. xl. 4. 50. pr. and 1. If no heres ex testamento accepted the inheritance, it devolved to the heredes ab intestato, and if no heres ab intestato accepted it, it devolved to the fiscus; if the fiscus would not accept it, the creditors could have the goods of the deceased sold for their benefit. But if the deceased had by testament or codicil given freedom to any slaves, then, after the inheritance had been successively rejected by the heredes ex testamento, the heredes ab intestato, and the fiscus, application might be made to have the goods given up to the applicant instead of being sold by the creditors, the applicant undertaking to enfranchise the slaves and to satisfy the creditors, and then the applicant became the bonorum possessor, though not the owner of all the property of the deceased. If the inheritance was accepted by any heir, or if there were no slaves to whom the deceased had left their liberty, then this addictio could not take place. Gaius makes no mention of this mode of acquisition per universitatem; a circumstance used to fix his date, as showing that he wrote before the time when Marcus Aurelius issued the rescript contained in the next paragraph. 1. Verba rescripti ita se habent : 'Si Virginio Valenti, qui testamento suo libertatem quibusdam adscripsit, nemine successore ab intestato existente, in ea causa bona esse cœperunt, ut veniri debeant : is, cujus de ea re notio est, aditus, rationem desiderii tui habebit, ut libertatum tam earum, quæ directo, quam earum, quæ per speciem fideicommissi relicta sunt, tuendarum gratia addicantur tibi, si idonee creditoribus caveris de solido, quod cuique debetur, solvendo. Et hi quidem, quibus directa libertas data est, perinde liberi erunt, ac si hereditas adita esset: hi autem, quos heres rogatus est manumittere, a te libertatem consequantur : nisi si non alia condicione velis bona tibi addici, quam ut etiam qui directo libertatem acceperunt, tui liberti fiant; nam huic etiam voluntati tuæ, si ii, de quorum statu agitur, consentiant, auctoritatem nostram accommodamus. Et ne hujus rescriptionis nostræ emolumentum alia ratione irritum fiat, si fiscus bona agnoscere voluerit, et hi, qui rebus nostris attendunt, scient, commodo pecuniario præferendam libertatis causam et ita bona cogenda, ut libertas his salva sit, qui eam adipisci potuerunt, si hereditas ex testamento adita esset.' 1. The following are the terms of the rescript: If the estate of Virginius Valens, who by testament has given their freedom to certain slaves, must necessarily be sold, there being no successor ab intestato, then the magistrate who has the cognisance of the affair shall upon application attend to your request, that, for the sake of preserving the liberty of those to whom it was given, either directly or by a fideicommissum, the estate of the deceased may be adjudged to you, on condition that you give good security to the creditors that their claims shall be satisfied in full. And all those, to whom freedom was given directly, shall then become free, exactly as if the inheritance had been entered upon; but those whom the heir was ordered to manumit shall obtain their freedom from you only; unless you wish that the goods of the deceased should be adjudged to you on no other condition than that those slaves also who received their liberty directly by testament shall become your freedmen; for if those who are to receive their freedom agree to this, we are willing that your wishes in this respect shall be complied with. And, lest the benefit of this our rescript should be lost in another way, namely by the property being seized behalf of the imperial treasury, be it known to the officers of our revenue, that the gift of liberty is to be attended to more than our pecuniary advantage; and seizure shall be made of the property in such a way as to preserve the freedom of those who would have been in a situation to obtain it, had the inheritance been entered on under the testament.' D. xl. 5. 2, and 4. 8. 11, 12. 17. on By a constitution of Gordian, it was declared that the rescript of Marcus Aurelius extended to cases in which a stranger, and not one of the slaves of the deceased, applied for the addiction. (C. vii. 2. 6.) |